Saturday, December 31, 2016

2016 and the Death of Ethics

2016 closes out apparently as the year of death.  For many it will be remembered as the year that saw Prince, Princess Leia, and many other royalty of Hollywood and music die.  It was the year that aging icons of the Baby Boom generation died and when all the sex, drugs, and rock ‘n’ roll did in many of the Baby Boomers themselves.  But another death occurred this year–the death of ethics.
For many 2016 was the year of the death of democracy in the USA and across the world.  Yes and no is the answer.  For good or bad Brexit and Trump point to the strength of populist of democracy and a sign that main stream politics cannot ignore certain voices.  For many, Brexit and Trump are only the tip of an iceberg at something more fundamentally wrong across the world
If one can define ethics to include terms such as justice, fairness, compassion, toleration, dignity, and fair play, ethics to a large extent took a major hit in 2016.   It is easy to point globally and in the United States to how Trump unleashed an ugly side of American politics.  He may not have caused it but he certainly helped enable, resurrect, and personify the ugly side of America that has been here since the days when we burned women as witches in Salem, Massachusetts in 1692-93.  It is that sense of fear and prejudice, ignorance, misogyny, that has always been part of the ugly underside of America that became perhaps mainstream and acceptable again.  It reared itself in the sexism confronting Hillary Clinton’s campaign, and of course in Trump’s where his comments about women, immigrants, Muslims, and just about everyone else not WASP failed to doom his campaign but instead seemed to strengthen himself at every juncture.  It’s not clear what is worse–what Trump dared to say and got away with it–or the fact for so many they said he had the courage to say what they had been thinking for so long.  Trumpism simply captured the underbelly prejudice and a lack of toleration and respect that still existed in our society.
But Trumpism is merely the name for a similar way sweeping the world that features Brexit in the UK, LePen in France, and Orban in Hungary, just to name a few countries.  It is about a intolerance for difference, for immigrants, and for outsiders of any shape.  But these political movements are also again about the lack of human compassion for the plight of Syrian refugees and others who seek a better life elsewhere.  But all of these movements are also about other forms of indifference.  In the USA and across much of the world people starve, the gap between the rich and poor grows, and many are marginalized.
In the US we have an opioid addiction problem which is merely a symptom for deeper issues of poverty, yet there seems to be little interest or will in addressing these issues by either party.  As some of my Democrat friends say, why should I care about these people, they voted Republican, whereas as some of my Republicans friends say, why should I care about gays, lesbians, the poor, and people of color, they vote Democrat. We cannot agree whether Black Lives Matter, Police Lives Matter, or All Lives Matter.  I saw too many people I know take leave of their political and ethical senses, intolerant of political disagreement and basic facts, guilty of confirmation bias and cognitive dissonance. I never knew human misery and compassion wore partisan clothes, but in a polarized world they seem to now.
The death of ethics is also about political ethics.  This was the year that the final vestiges of the post-Watergate reforms died.  Campaign finance reform and the efforts to limit the impact of money in politics are gone.  Obama helped kill it off in 2008 when he opted out of the presidential public financing system and this year neither Clinton nor Trump participated.  It was also about the power lack of candor if not sometimes lying by presidential candidates this year where it became clear we have entered a post-truth, post-fact, political world dominated by fake news and by a mainstream news so anxious to survive in a for-profit journalist world that it was willing to cover anything so long as it made a dollar.  Both the New York Times and the Wall Street Journal seem shrill in both their editorials and political coverage.
Yes there is a structural component to the collapse of political ethics in terms of how money biases the political system, but it is individualistic too.  Trump displays barely a modicum of respect for political ethics. His conflicts of interest test the limits of American politics.  For the Democrats, the collusion of Deborah Wasserman-Schultz, the DNC, the state parties, and the Clinton campaign raise questions about fairness.  Donna Brazile, working for CNN, leaked debate questions to Clinton, and displayed no remorse for her actions.  And in Minnesota, members of the Sports Facilities Authority and their partisan friends and guests were clueless regarding how the allocation of tickets  to the new Vikings stadium was wrong.  I
If fact, no one seems to want to say that the  bad behavior in 2016 was bad behavior.   For those who still believe in truth, goodness, and beauty, that facts matter, and that ethics are important, 2016 was an awful year.   Ethics seemed as if it were located long time ago in a galaxy far, far away.
One can only hope we learn something from a horrible year and that 2017 is better.

Saturday, December 17, 2016

Trump’s Conflicts of Interest: The Problem of Securities Fraud and Insider Trading

A ton of ink and air time has been spent speculating  on Donald Trump’s conflicts of interest as
president of the United States and how either the law may not address his unique circumstances or how Trump’s refusal to honor ethical precedents is troubling.  All of this may be true.  But while all this chatter has been going on almost everyone has missed how a recent Supreme Court decision may have dealt a significant below to the Trump presidency with an interpretation of a securities law that goes back to the New Deal–the prohibition on insider trading.
Donald Trump is probably the richest person every elected president of the United States.  He has a vast empire of business holdings that cover the world. These holdings could potentially create conflicts of interest for him.  Much in the same way that conservatives criticized Hillary Clinton for possible conflicts of interest growing out of her role as Secretary of State and the Clinton Foundation, Trump will face the same as president.  He will be able, for example, to appoint members of the National Labor Relations Board (the agency that oversees private sector  union rules)  or issue executive orders regarding workplace safety issues that could impact his businesses.  Or there are issues regarding how his foreign business holdings might influence decisions he renders  in international affairs.
Past precedent dating back to Jimmy Carter has been to place one’s business holdings in a blind trust so that the president has no control over his business nor knowledge regarding who is running his affairs.  Dating back to Richard Nixon presidents have released tax returns to offer the public a clearer picture of their financial affairs.  Neither of these precedents are law–they are good ethical practices that presidents has followed as a matter of good government.
Trump has essentially rejected both practices.  He has yet to release his tax returns and has indicated that he will not place his business holdings in a blind trust.  At various times his transition team has declared either it will soon address the conflicts of interest issue, but most recently a press conference scheduled to be held on the topic was cancelled.  Trump has also said that he might turn over day-to-day decision making of his business to his children, assuming that this would be enough to cover his ethical problems.  Unfortunately, that too will be insufficient.
The core of the problem is the powerful risk of insider trading.  Back in the 1930s when Congress and President Roosevelt were trying to clean up the mess on Wall Street after the stock market crash in 1928, they passed the Securities Exchange Act of 1934.  Among the major provisions of the law was a provision to regulate securities fraud. Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission's Rule 10b–5.
Securities fraud can encompass  many practices, but one of them is insider trading.  Specifically, it is when those in corporations or businesses in trusted positions trade on information before it becomes public.   Classic examples are when officers of a corporation knows that their business is going to have a very good or bad first quarter earnings report and then before telling the public buys or sells stock in their company.
Such insider trading is considered fraud in several ways.  One is how it allows some the chance to take advantage of privileged informed before the public can use it–this is an abuse of one’s trust or special position.  But it also allows for some individuals to potentially use this information or position to manipulate stocks to their personal advantage.  Many of the Enron executives did that back many years ago when they sold stock based on insider information that revealed their company was tanking even though the public did not know that, or when they manipulated balance sheets of the company to facilitate their own personal stock holdings.  All this is illegal, a felony security violation.
Part of what is also prohibited under insider trading law is not simply a corporate officer trading on privileged or confidential information, but also passing it on to someone else.  Here both the tipper and the tippee may be guilty of insider trading.  Various Supreme Court decisions have sought to define what constitutes insider trading and what has to be proved to show guilt, but on December 6, 2016, in Salman v United States, the Supreme Court issued a decision that significantly  impacts President Donald Trump, his family, and perhaps many business insiders in his administration.
At issue in this case, Salman was indicted for federal securities fraud for trading on inside information he received from a friend and relative-by-marriage, Michael Kara, who, in turn, received the information from his brother, Maher Kara, a former investment banker at Citigroup.  Salman was convicted of securities fraud but argued on appeal that 10b and 10b-5 did not apply to gifts of confidential information and that the law requires the tipper to acquire some material benefit from the tip.  The Supreme Court rejected this argument.
Writing for a unanimous Court, Justice Alito declared:

Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission's Rule 10b–5 prohibit undisclosed trading on inside corporate information by individuals who are under a duty of trust and confidence that prohibits them from secretly using such information for their personal advantage...These persons also may not tip inside information to others for trading. The tippee acquires the tipper's duty to disclose or abstain from trading if the tippee knows the information was disclosed in breach of the tipper's duty, and the tippee may commit securities fraud by trading in disregard of that knowledge. In Dirks v. SEC, this Court explained that a tippee's liability for trading on inside information hinges on whether the tipper breached a fiduciary duty by disclosing the information. A tipper breaches such a fiduciary duty, we held, when the tipper discloses the inside information for a personal benefit. And, we went on to say, a jury can infer a personal benefit—and thus a breach of the tipper's duty—where the tipper receives something of value in exchange for the tip or “makes a gift of confidential information to a trading relative or friend.”

The critical holding in Salman is that liability for insider trading can be established through simply giving te gift of confidential information to a friend, family, member, or others.  The gift alone may be enough to establish liability for both the tipper and tippee. According to Alito:

[A] tipper breaches a fiduciary duty by making a gift of confidential information to “a trading relative,” and that rule is sufficient to resolve the case at hand. As Salman's counsel acknowledged at oral argument, Maher would have breached his duty had he personally traded on the information here himself then given the proceeds as a gift to his brother. It is obvious that Maher would personally benefit in that situation. But Maher effectively achieved the same result by disclosing the information to Michael, and allowing him to trade on it.

Salman in many ways builds upon a 1997 decision United States v. O’Hagen where the Supreme Court articulated the “misappropriation theory” for securities fraud.  Under this theory it is still insider trading if a person  trades in securities for personal profit using material, confidential information without disclosing such use to source of information.  In addition, the 2012 STOCK Act, which made it illegal insider trading for members of Congress to use confidential information to trade on stock, arguably if not definitely applies to members of the executive branch, including the president.
So how does all this apply to Trump?  Lacking a blind trust for his business holdings and where his children or he are still closely involved in the running of his business empire, use of any confidential  information for business purposes could be a form of insider trading prohibited under 10b and 10b-5.  For example, President Trump passes on information about imposing a tariff on a company contemplating shifting jobs overseas.  He or his family now have this information which they then use to buy or sells stock in that company or otherwise use in ways to make securities trades.  Once this government information is given to a corporate officer it becomes insider information and any trading on it before it is made public would be insider trading, securities fraud.
O’Hagen and Salman give the government broad leeway to prosecute for securities fraud when individuals–both tippers and tippees–use confidential information that they have for personal benefit. And just as important, under a series of other Supreme Court decisions private parties are not barred from bringing suits raising securities fraud in some cases.  Thus, even it one worries that  a Trump Justice Department would not prosecute or investigate the president or his family, other private parties are not barred from bringing legal challenges.
Trump, his family, and his network of business holdings implicate many traps for insider trading.  The same is true for his rich friends he is appointing to many of his cabinet and other positions.  The conflicts of interest that may ensue raise not just ethical issues but significant securities fraud issues that could create numerous criminal and civil problems.

Saturday, December 10, 2016

Civil Rights in a Trump Era: Why Telescope Media Should Not Win In Minnesota

The latest battle line for LGBTQ rights in Minnesota is over wedding pictures and movies and it is
being fought between Telescope Media Group and the State Human Rights Department  Telescope is a business claiming a First Amendment free speech or free exercise of religion in its refusal to serve same-sex couples.  Telescope should lose because no business has a First Amendment right to discriminate against individuals.  Freedom of speech and religion grant you as an individual a right to believe what you want, but it does not give a business a right to discriminate.
Recently owners of the Telescope Media Group did an op-ed in the Star Tribune telling their story as a Christian-based business wanting to tell stories about traditional marriages between one man and one woman.  They claim that the Human Rights Department is forcing them to also promote  same-sex marriages, drawing an analogy to a government which would have told Alfred Hitchcock to make musicals and not suspense stories.  This analogy is inapt.  But to understand why, one needs to be clear about the structure of the First Amendment and civil rights law.
First remember that the First Amendment originally applied and only limited the federal government but over time it too now limits state and local governments.  What does this mean?  The First Amendment is a limit on the government–the government may not abridge or limit freedom of speech or religion.  Private individuals and businesses are free to do what they want.  If you choose in your private life–as too many people do–to only associate with those who think the same way as you or who hold the same beliefs as you–that is your right.  No government in the US can tell you who you can invite to your house or tell what books to read or websites to visit.  Conversely, private businesses can do what they want.  The First Amendment does not apply to Facebook, a private business.  It can censor whatever it wants and it is free to do so because it is a private business and the government cannot tell it what content to carry.  In addition, your private employer can fire you because  it does not endorse or support your political views.  Private schools and colleges can impose speech codes. Overall, we are free to think or believe  what we want, including in our artistic expression, and private entities have a similar right.
Second, until the passage of the 1964 Civil Rights Act private businesses were allowed to discriminate in whom they employed or served.  Yes the Fourteenth Amendment Equal Protection clause prohibited discrimination, but again it only applied to the government.  The 1964 Civil Rights Act made it illegal for businesses engaged in interstate commerce (the term actually used is “public accommodations” to discriminate in their employment and customer service policies.  The Act was upheld as constitutional by the US Supreme Court and its constitutionality validity is not in doubt.
Yet the 1964 Civil Rights Act has three important exemptions for our purposes here. First,  there is an artistic exemption.  By that, the law says that if in filming a movie about racial discrimination it wanted to employ white only actors it could do so. This is among a category of exemptions known as a bonifide occupational requirement.   Second, and closely related to BFOQs,  religious organizations receive an exemption too on some matters.  By that, the Catholic Church is allowed to stipulate that in the hiring of a priest he must be Roman Catholic and, for good or bad, he must be a he.  You cannot sue the Church for gender discrimination for refusing to hire a female priest.  Third, the original 1964 Act covers sex discrimination but not discrimination based on sexual preference or identity.  To this day the Act still does not cover this type of discrimination, even though the Minnesota Human Rights Act does prohibit this type of discrimination.
The Supreme Court’s 2015 Obergefell v. Hodges decision legalizing same-sex marriage addressed one form of discrimination which involved government action but it did not address other  issues of civil rights involving businesses.  Absent state laws otherwise prohibiting it, federal law still does not make it illegal to discriminate against members of the LGBTQ community in areas of housing, employment, or customer service.  Soon after Obergefell one saw a rash of “wedding cake” controversies, businesses claiming a religious exemption from having to bake wedding cakes for  same-sex couples.   It also encouraged states like North Carolina to pass bathroom laws targeted against transgender individuals. Telescope Media’s case is a variant of these cases, except adding to it an apparent  artistic creativity or perhaps freedom of association claim.  There are several flaws legally and even ethically with this claim.
Back in the 1980s the Minnesota Jaycees wanted to admit women to their organization in defiance of the national Jaycees which opposed it.  The State of Minnesota sided with the Minnesota chapter, invoking the State Human Rights Amendment which banned se discrimination.  The national Jaycees argued that forcing them to accept women would violate their right to freedom of association and expression.  In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme  Court rejected that claim and upheld the Minnesota Human Rights Law.  This case alone ought to settle the dispute here, but for Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000).  In Dale  a closely divided Supreme Court permitted the Scouts to ban gays from their organization by arguing that the Scouts had a protected expressive message against homosexuality that was core to the identity of their organization and that to then allow for a gay scout master would force it to endorse a message it did not support.  The logic of Dale is what is also behind Hobby Lobby and its refusal  to provide birth control coverage to women, and it is a similar logic behind Telescope Media’s arguments.
Some careful distinctions must be made.  There is a difference between artistic expression and conducting a business that serves the public.  Telescope Media is trying to hide its discrimination  behind the former.  If it wants to make bigoted anti-same sex marriage movies it may do so. No one can or should tell them they have to do that.  But if they are operating a business they do not have a right to refuse to serve someone based on their gender preference or orientation.  Allowing a private business to invoke religious or artistic expression as an exemption to anti-discrimination law is not about being politically correct, it is about promoting a fair and just society.  It is creating a level playing field for all.  Telescope Media’s arguments taken to their logical terminus allows them a free pass  to discriminate against serving mixed racial or mixed religious couples (Perhaps in their view Jesus  would have opposed a Catholic marrying a Jew).
Moreover, reliance on Dale is not good.  First, Dale is a much disputed legal precedent that some equate to the same anti-gay animus found in the 1986 Bowers v Hardwick decision which declared consensual adult same-sex sexual activity as not protected under a right to privacy.  That decision was repudiated and overtured in the 2003 Lawrence v. Texas.  Additionally, Dale seemed to blur the line between religious (churches or temples) and non-church entities. Many already think  that religious organizations are given too much freedom to discriminate in ways that violate the Establishment Clause.  Allowing Telescope Media to prevail opens up a bad precedent in simply letting any business to invoke a religious claim as a way around anti-discrimination law.  This is what the flaw in the Hobby Lobby decision was, and the viability of that precedent too is questionable.
The concern of course in a political and legal world defined by a Trump presidency Telescope Media might prevail.  It could but should not.  The current anti-discrimination law is well grounded and would not be easily dismantled or overturned.  But the fact that this is even entertained is a product an era that the Trump presidency may be ushering in. One where equal protection under the law are viewed is as political correctness and not as w hat is demanded in a society that respects fairness, justice, and  civility.   People legitimately voted for Trump for many reasons that should be respected.  But what one hopes is that it was not an endorsement for a return to bigoted behavior  where people felt like they can say the must hurtful things they wanted to one another, or that businesses can hide their prejudice by invoking claims of artistic or religious expression.

Sunday, December 4, 2016

Lessons Learned or Not from the 2016 Election

Perhaps the only thing more dreary and misinformed than the commentaries and emoting leading up
to the 2016 election are the commentaries and emoting that have taken place since.  It has been approximately one month since  November 8, I have given more than a dozen talks to various groups about the election and have listened to more than my fair share of partisan analysis and general emoting about what happened.  Nate Silver once did a book discussing the need to separate the signal from the noise if we want to make good predictions. What are some of the lessons learned or not since then?  In effect, what was and is still now the signal and noise regarding the election?

The Pollsters did not blow it.  Everyone wants to argue that the pollsters blew the election.  No, they did not.  The last national aggregate polls said Clinton had about a 2-3 point lead in the national popular vote.  Guess what?  The near final vote totals are showing her with a 2 or so point lead in the national popular vote.  But remember two things about polls.  First, polls are never pin-point accurate and will be expressed in terms of margins of error of +/- three or so points.  Clinton was within that margin or error.  Second, and more importantly, as I have repeatedly told people, national aggregate polls are worthless when it comes to presidential elections because we do not elect people by the popular vote–it is the electoral college that matters.  What was more critical to examine were the tracking polls in critical swing states and there we saw clear evidence in the last 72 hours or so that the undecided voters were tracking toward Trump.

But the pundits did blow it.  The NY Times at one point gave Clinton nearly a 92% chance of victory and Nate Silver had it up to the high 70s or 80s.  Almost every major media pundit and outlet  was convinced Clinton would win and simply could not see how she could lose to Trump.  ( For the record, I generally placed Clinton’s chances most of the election at about 55% but consistently saw many reasons why Trump would win and apparently I have been told by many people who attended many of my talks in the last year said that I predicted Trump would win).  There are many reasons why they blew it, much having to do with the intellectual or cultural bubbles they lived in, laziness,  or again accepting the same received wisdom of 2008 that said that Clinton was inevitable.

This election was typical in many ways.  In many ways this was a normal election that came down to some fundamentals and basics.  It was an election that was decided by a handful of swing voters n a few swing counties in a few swing states. These were the same states I wrote about in my book, plus Pennsylvania and Michigan.  No surprises here.  In addition, elections come down to candidates  and their narratives–Clinton lacked a clear and consistent reason to why she should be president, Trump had a narrative.  Despite all the hand wringing and speculation of a divided Republican Party, Trump did a better job mobilizing the GOP base and holding it than did Clinton.  Trump moved more of the swings in the critical swing states.  And true to form as with the most recent elections, it was a polarized election that was very close.  Finally, Tip O’Neill once said never assume people will vote for you–everyone wants to be asked.  Clinton lost in Michigan and Wisconsin because she did not campaign there ask for votes, Trump did.  The same almost happened in Minnesota.

The election was atypical in many ways.  There were many ways this was an unusual election.  First both candidates were tremendously unpopular and that created volatility among some in the electorate undecided regarding whether to vote and for whom. Perversely, both candidates did better in the polls when they did not talk or were not covered by the media.  Second, this was the first presidential campaign in American history with a major party candidate featuring a woman.  Before  the election I estimated that approximately 30% of the electoral would never vote for a woman regardless of who she was.  My point was that sexism was a central problem in this election that most pundits and people largely ignored.  It played out in terms the preoccupation with Clinton’s pantsuits, speech patterns, demeanor, and Trump’s language, both verbal and body during the debates and campaign season.    Other factors that made the election unique were how the Democrats seem to have largely lost working class voters, the impact of the FBI director Comey letter, and the  near complete void in terms of issues as a factor in the race.  We should also not forget about the transformation of the made for television election and presidency into the made for social media election and presidency.  Finally, we should not ignore the important role fake news played and how bots and trolls potentially drove much of the election in the social media.

Politainment lives!  I have written extensively about the rise of politainment, or the convergence of the politics and entertainment (and pop culture) where candidates who master the art of generating clicks and views in a 24/7 for profit media cycle will do well.  Trump understood this, Clinton did not.  The mainstream media was so heavily dependent on Trump for dollars and viewers that it could never figure out how to cover him.  The same is true post-election.    Trump essentially owns the news establishment, preventing the media from being able to cover him in any way that is objective or reasonable.

But even beyond the aforementioned themes, there are several post-election reactions or statements that need to be addressed.

Trump will be the president.  Barring the unforeseen Trump will be president.  A lot of people are saying that “Trump is not my president.”  Like it or not he is.  Some see him as a sexist pig or worse  and cannot believe Clinton lost to him.  The reality is she did lose the electoral college to him.  Moreover, yes the sexism in our culture stinks and one can complain about it forever but that sexism is a reality and female candidates unfortunately have to learn how to campaign facing it.

Don’t blame the voters.  I have seen way too many articles or people blame Millennials, or third party voters, or women, or others for why Clinton lost.  Stop blaming the voters!  The fault is with Clinton.  Ralph Nader once said that no one owns a voter and as Tip O’Neill said, you have to ask and earn votes.  Clinton was not entitled to anyone’s vote and she had to earn it.  If people did not vote for her the fault rests with her so blame her and her campaign instead.

Demographics is not Destiny.  This was the Democratic Party mantra and Clinton strategy leading into this campaign.    Demographics matter but so does candidate quality and message.  Moreover, in many ways demographics did matter in this election–white working class are still a majority of the electorate and they still matter and they show up to vote.  Oh, and the electoral college still matters.

The election was not rigged.  There is little evidence to support this a currently understood.  We do not have much information regarding voter suppression yet.  There is little evidence of Russian hacking or the general hackability of US elections.  Moreover, there is no evidence that millions of illegal votes, especially in patterns that would have only voted for Clinton. No party has a monopoly on virtue and there is also no reason to think that the paltry cheating that occurred took place to the benefit of one party or candidate alone.   If we are talking about rigging in terms of the role of money in politics, election rules that hurt third party candidates, and the media bias, then yes it may have been rigged.

This may or may not have been a critical election.    There is some evidence that traditional voting patterns shifted in this election but it is not clear how much and how permanent.  The best explanatory variable predicting election returns this year seems to be educational level.  Areas on balance with people with more college degrees voted for Clinton and Democrats.  No this does not mean stupid people voted for Trump.  It instead suggests a new cultural divide that needs to be understood better in terms of how American elections move forward.

There are no tanks in the streets.  Calm down everyone.  Yes the campaign was awful in tone and  we saw an unleashing of a lot of bigotry.  Yet it started way before Trump and he may simply be the face of a new ugly era already emerging in politics.  Stories from the Southern Poverty Law Center report hundreds of hate incidents since the election but we have no idea how this fits into an existing trend line or in comparison to comparable recent periods.  There is constant hysteria about what will or will not happen with Trump as president.  Calm down.  For the same reason that the rigidity and stability of our political institutions (checks and balances, separation of powers, bicameralism, and federalism) make political change difficult, the same will also prevent any excesses over the next four years.  We should also simply ignore or shrugged off (as David Brooks recently said) the most recent tweets of Trump.

Overall, understand there is a lot of noise out there.  Ignore most of it.

Monday, November 28, 2016

Ethics and Conflicts of Interest at the Minnesota Sports Facilities Authority

Rochelle Olson’s recent Star Tribune article detailing how members of the Minnesota Sports
Facilities Authority (MSFA) have given themselves the perks of free tickets to sports events and the new US Bank Stadium is a case study in self-dealing and abuse of official positions.  It describes how public officials have convinced themselves how doing what is in their personal interest is furthering the public good.  What they did is ethically wrong, and as I was quoted in that piece, perhaps also legally wrong.  Let us examine the issues.
First, let me explain my perspective.  I taught government ethics for 15 years.  Prior to that I served as the president and executive director of Common Cause Minnesota (a group that advocated for ethics in government).  I have done ethics training for many state agencies and local governments in Minnesota.  I have written a book and several articles on government ethics, and serve on the editorial board for the leading international journal on government ethics.  For all of these reasons I think I can competently speak on the issue of government ethics.
The single most classic definition of conflict of interest is when government officials are using their personal positions for private enrichment, or using their official position to further their own private interests.  By nearly universal definition this is a form of political corruption.  While traditionally such a definition of conflict of interest required a public official to reap a financial or pecuniary gain, the concept of conflict of interest and abuse of position has expanded.  Minnesota Statutes §43.A38, which applies to members of the State Executive Branch, well captures this.  For example, it declares as a conflict of interest:

use or attempted use of the employee's official position to secure benefits, privileges, exemptions or advantages for the employee or the employee's immediate family or an organization with which the employee is associated which are different from those available to the general public.

This law also bans the “ use or allow the use of state time, supplies or state-owned or leased property and equipment for the employee's private interests or any other use not in the interest of the state.”
By any reasonable construction of this law, use of the special box seats by the MSFA for their personal use is ethically wrong.  Other states have similar rules on this, as well as local governments.  In fact, in my training of local governments employees and professional societies across Minnesota, the type of behavior exhibited by MSFA officials would clearly be wrong, subject to disciplinary action.  In addition, if this behavior were to occur among members of the executive branch it would be considered illegal.  In fact, for the last 18 or so years I have taught in  the Emerging Leaders program for the State of Minnesota.  This program trains future managers and agency heads in state government.  I have always taught the ethics component in conjunction with the state ethics officer and Minnesota Statutes 43A.38 occupies a central role, where descriptions of the type of behavior depicted by members of the MSFA are highlighted and described as ethically and legally prohibited.   The point is that what they did is wrong.  No matter how hard they worked they are not entitled to these special privileges.  The same point goes to recipients of the free tickets if they too are public officials or employees.
So has any state law been broken?  The answer is more complex but there are good reasons to say so.  First, any members of the executive branch who received free tickets arguably did break the law.  But what about members of the MSFA?  If they are considered members of the executive branch then they did too.  It is not clear if they are, but an argument can be made that they should be.
The MSFA is a strange entity in Minnesota law.  Minnesota Statutes § 473J.07 declares the MSFA to be “ established as a public body, corporate and politic, and political subdivision of the state.”  Under   473J.09   it is declared to be a public “authority may sue and be sued. The authority is a public body and the stadium and stadium infrastructure are public improvements within the meaning of chapter 562. The authority is a municipality within the meaning of chapter 466, and that means both the Data Practice Act and open meeting laws apply.  All this is significant for several reasons.
First, it is a public body but it is treated like a local government.  Minnesota Statutes 43A.38 does not apply to local governments and therefore one could argue that members of this body do not legally have to follow these rules. Yet Under Minnesota Statutes  § 10a Subd. 22, they meet the definition of local official (“ a person who holds elective office in a political subdivision or who is appointed to or employed in a public position in a political subdivision in which the person has authority to make, to recommend, or to vote on as a member of the governing body, major decisions regarding the expenditure or investment of public money.)  Members of the old sports commission explicitly covered by this definition (subdivision 24).  Arguably so are members of the MSFA, and they would be covered by the conflict of interest rules under Minnesota Statutes  § 10a .  These rules are weaker than 43A.38, but they still have some force here.
But more importantly, even though the enabling language for the MSFA makes them a local government, there are many reasons to think the agency is also a quasi-executive agency, or at the least an agency with a confused legals status under the Minnesota Constitution.  Its members are appointed by the governor but it reports to the legislature.  There is no other entity in Minnesota that looks like the MSFA, except perhaps for the Iron Range Resource and Rehabilitation Board (IRRRB), and state law explicitly declares the IRRRB to be an executive branch agency.
The similarities in structure between the MSFA and the IRRRB suggest the former should also be considered to be at least a quasi-executive agency.  Its confused legal structure, despite state language to the contrary, suggest it to be executive in many of its functions and therefore should be treated as if part of the executive branch with 43A.38 applying.
Finally, there is another reason to think that the MSFA distribution of box seats is illegal.  Look at who received the tickets–apparently all DFLers.  One can argue that the seats were awarded for partisan political purposes, and there are opinions from previous State Auditors that the use of state property for political purposes is illegal.
Overall, members of the MSFA and public officials who received free tickets should have known at the very least that their actions were unethical by any accepted standards of contemporary public sector ethics.  In addition, State Law and, in some cases applicable local law, would have declared this practice illegal.

Friday, November 25, 2016

Before there was Trump there was Ventura: The Lessons from Minnesota

Today's blog also appears in the Huffington Post.

            America–You are about to experience with Donald Trump as president what Minnesota experienced with Jesse Ventura as governor 18 years ago. Both are politainers within a world of politainment where the traditional boundaries between politics and entertainment have merged and the normal rules defining conflict of interest and the personal and public roles of individuals have collapsed.  And if the experiences of Ventura are any indication, America is in for an entertaining four years with Trump as president.
            Eighteen years ago, James Janos “shocked the world” when he was elected governor of Minnesota.   Better known as Jesse Ventura, a professional wrestler and a B movie actor, he marketed his media skills and persona to fuel his candidacy.  He ran as an anti-establishment, pro working class, truth-talking, third party candidate who would shake things up in St. Paul, Minnesota.  And he did.  When first elected one of my graduate students and I described him as the culmination of a new breed of candidates for a new era.  He was a politainer–a politician and an entertainer combined–operating in a world where politics and entertainment–politainment–had emerged.  What does it mean to be a politainer?
            Back in 1999 we wrote that a “politainer has a dual career: he uses his entertainment career to benefit his political career, and he uses his political career to benefit his entertainment career.”  We described the entertainment persona of politainers as fiction, yet we elect as a politician the persona and not the person.   The persona is the political and vice versa. The politainer persona is a commodity to be sold using multi-media venues and marketing techniques to deliver a message that simultaneously convenes both a personal brand and a political statement.
            We saw Ventura as the perfect embodiment of a trend in American politics that started with television back in the 1950s.  Presidential politics had been remade by television, and presidential candidates capable of selling themselves there have gone on to succeed.  There are many examples such as the first political commercials in the 1965s proclaiming “I like Ike.” Or the 1960 Nixon-Kennedy presidential debate, the 1968 Nixon appearance on the television show Laugh In, Reagan the actor and his ability to deliver his lines, Bill Clinton on Arsenio Hall donning dark glasses and a saxophone to play Heart Break Hotel, or simply the emergence of Comedy Central and SNL as major pop culture players in politics.  Politics and entertainment had collapsed into one another and Ventura understood that.
            As governor Ventura never seemed able to separate marketing his persona from his job as governor—in many ways he was a perfect case study in conflict of interest.  He hosted the XFL while governor, claiming to do on his time off.  He appeared on his favorite soap opera, and he acted in his persona to host a professional wrestling match while portraying his role as governor.  When criticized for all these adventures as conflicts of interest–and I filed several of those complaints as executive of Common Cause Minnesota–he dismissed them, saying that these rules did not apply to him but only to professional politicians or everyone else in the executive branch but him.  Trump’s governorship was in part about the triumph of personal interest over the public interest, or at most the pursuit of his interest defined as the public interest.  And on top of it all, Ventura had a thin skin for criticism, attacking as “jackals” the very media who made him.   By the time his governorship ended, his popularity and support wearied a state that once gave him record approval.  Minnesota survived Ventura, but his legacy is at best mixed in terms of what he accomplished.
            Minnesotans see Trump as Ventura redux, a politainer for a new generation who also shocked the pundits and media with his election. His political success too is rooted in his entertainment persona–he understood how to market himself to a 24/7 news cycle hungry for ratings and controversy, and he delivered a fresh news story and drama every day that satiated the media hunger for ratings and clicks.   But he also mastered the social media, transforming the made for television presidency into the made for Twitter and Facebook one.  Trump declared outrageous claims to promote himself and the media took him literally while his supporters took him figuratively, selling himself, the country, and his supporters the belief that his election would represent the victory for the little guy–that is what would make America great again. Conflicts of interest?  That is something for professional politicians which is why during the transition he continues to mix personal business with politics, signaling that what is good for Trump the brand will be good for the nation and vice versa.

            If Ventura’s experience is any guide, Trump too at best will leave a mixed legacy.  At best, it will be a presidency marked by a petty, thin skinned politician who had a chance to change the political paradigm but did not. At worst, it too will be train wreck of shameless self-promotion and marketing gimmicks that confuse the public and private interest.  Minnesotans have already lived through an earlier version of Trump and we are ready for his presidency.  Are you America?

Saturday, November 12, 2016

Trump, Clinton, and the Crisis of the Democratic Party

To the surprise of many of many Donald Trump defeated Hillary Clinton to become the next
president of the United States.  The reasons for Clinton’s loss are many, but the real issue is what’s next for America and the world under a Trump presidency?

Why Clinton lost?
There are many reasons why Hillary Clinton lost; some are self-inflicted, others a consequence of bad timing and luck.  Clinton was in the end a weak candidate.  She was a poor public speaker, she lacked a clear rational for why she wanted to be president, and she had a strategy that simply did not resonate with many voters, especially the white working class who voted for Trump.  She never had a good explanation about her e-mails and the use of a private server, or about her Wall Street speeches. She was someone that many voters did not feel passionate about, resulting in her holding less of her Democratic party base to vote for her than Trump did with his Republican party base.  Clinton also was unable to capture the swing or undecided voters in large percentages, and it was these voters who broke decisively in the last few days and went for Trump.
But Clinton was also a victim of circumstances.  Her greatest asset was her experience as a senator and Secretary of State, yet in a year where being a Washington insider was a liability it hurt her.  She ran as the status quo candidate who will continue Obama’s policies, but the mood of the country was for change. She was also a victim of sexism, facing unique problems as a woman that no previous major party presidential candidate faced in American history.  There was the unfortunate luck of the cost increases under the Affordable Care Act or Obamacare, and she also became the fifth victim in American presidential history to be the winner of the popular vote but lose the electoral vote.

The Crisis of the Democratic Party
In addition, for those who wondered why the polls failed the answer is that they did not.  In the end the last polls said she was ahead by a percentage point or so and the final election totals confirmed that.  Clinton did win the popular vote but remember, it is the electoral college that decides the winner and not the national popular vote.  Clinton lost narrowly, it coming down to swing states.  In these states last minute voters broke against here, similar to what happened in 1980 when undecided voters at the last second voted against Carter and for Reagan.  Additionally, the voter turnout in 2016 was the lowest in 20 years–Trump and Clinton were candidates who turned off many voters, especially those who were occasional voters.  In 2008 and 2012 they went for Obama but Clinton could not convince them to vote for her.  Many of the 2008 Obama voters wanted change, Obama did not provide it and Clinton as the status quo president who would continue the Obama agenda too did not represent it.
In the end as Top O’Neill once said, no one owns a voter or vote and you have to ask for it and earn it.  Clinton and the Democrats failed to ask for the votes of many people and they did not earn it.  In fact, the real story of 2016 is the collapse of not the Republican but Democratic parties.  Obama and Clinton leave the Democratic Party far weaker today than they did in 2008.  It is a party  unable to speak to working class whites, rural, and suburban America.  A party that actually does  take for granted people of color and liberals whom they assume will vote for them because they have no other choices.  It is also a party that blew off young people–the Millennials–with repercussions  down the line.  No, contrary to what so many Clinton supporters are whining about, the Sanders and Trump people are not idiots and voting for Johnson and Stein did not cost Clinton the election.  Clinton and the Democrats lost it themselves; the voters were often rational in voting not their fears but their hopes.

The Trump Presidency
Trump is now president and the question is what will he do?  He made lots of noise about building a fence along the US-Mexican border, wanting to renegotiate trade deals, and of perhaps  rethinking NATO and the US relationship with Russia and Putin?  How much of this will or can he actually do?
Domestically Trump has called for many changes but it is unclear what he can do on his own.  Historian Richard Neustadt once said that the power of the presidency is the power to persuade.  Presidents are not generals, business leaders, or monarchs and they cannot just order people around.  They need to persuade others, including Congress, the bureaucracy, the states, the media, and the public if they as presidents want to succeed.    Trump’s close victory in a divided America means he will be limited in terms of whom he can persuade.  His own Republican Party is divided and it is not sure he will get an easy path to success in Congress.  Because Trump ran a campaign largely devoid of policy he has no real clear policy agenda path.
In addition, presidents are constrained by a power bureaucracy, federalism, checks and balances, and separation of powers.  At the end of the day there will be no wall along the Mexican border, and mass deportations will not occur.  Trump will make America a less kinder and gentler place, but the extremism that some worry about will not occur.  US political institutions are not that fragile, I hope.
In the area of foreign policy often the best predictor of what a new president will do is to look at the previous president.  There is far more continuity across presidential foreign policy than there is divergence.  Obama made marginal changes from Bush.  The foreign policy establishment is power and it transcends political parties.  Trump may find he is captured more by this bureaucracy than he realizes.
Trump may try to force changes in trade deals but face retaliation from China and the European Union who will not passively sit by.  The same is true of the World Trade Organization.  Trump may think he knows Putin but after he gets burned by him a couple of times he may turn on him.  Trump wants to tear up the Iranian nuclear deal, but it is not clear what he has to replace it with and it is doubtful the rest of the world will go along.  Unilateral action in Syria and against ISIS or Dash is possible, but Trump seems not to have real alternatives.  And even his talk about NATO and its alternatives may be more talk than reality.  It just does not seem feasible that the US foreign and miliary policy establishment will let that happen.  Yes, perhaps a new global order needs to emerge, but te US in 2017 is not in the same position to force this change as it was in 1946, or even at the end of the Cold War.
In short, Trump may simply misunderstand or not appreciate how little power he actually has.  He is potentially clumsy, undiplomatic, unskilled, and clueless about world politics, but it is doubtful he will have the ability to affect the scope of changes that he blustered about during his campaign.

Friday, November 11, 2016

Electoral College Do Your Job: Make Clinton President

You’re heard the news stories over the past two days that the electors in the Electoral College could still swing this election back to Hillary Clinton when they meet across the country to cast the ballots for their states on December 19. You’ve heard there is a petition with hundreds of thousands of signatures encouraging just that.
Constitutionally they have the power to do that, and if they care about democracy and the will of the people, that is the right answer.

First,  I did not support or vote for Hillary Clinton.

Having said that, I believe that because Hillary Clinton did win a majority of the popular vote, she should be our next President.

That would be the case if the President were selected directly by the people. Majority rule by the people through elections is central to almost everyone’s conception of what a modern representative government is, and in democracies around the world, the people select their leaders that way.

Not so, currently, in the United States. Instead, the President is selected by the Electoral College.

That should not happen in this day and age. The Electoral College model of electing a leader is an outdated, anti-democratic institution.

In 1787, when those who framed our government deliberated the drafting of the Constitution, the Electoral College was selected as the mechanism to pick the President for three reasons.

First, it was a by-product of a compromise of a conflict between the big versus small states. Sparsely populated states feared they would be ignored if population were the basis of Presidential selection.

Second, southern states feared that if population were a basis to pick a President the populous northern states would outlaw slavery. It was this same fear of slavery being banned that led to the famous “three-fifths compromise” that counted slaves as only partial humans for the purposes of taxes and representation.

Third, the framers of the Constitution and our government simply feared common persons, seeing them not as competent to select a position so powerful and important as the President.

Alexander Hamilton, writing in defense of the Electoral College in Federalist Paper 68, declared of the President “the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.” Yet, he declared that such a choice should be entrusted to a small group of people consisting of “men most capable of analyzing the qualities adapted to the station. . .[and who] will be most likely to possess the information and discernment requisite to such complicated investigations.”  In his Notes of the Debates in the Federal Convention of 1787, James Madison quotes several of the constitutional framers who opposed directed popular selection of the President, such as Elbridge Gerry, who saw the people as “uninformed, and would be misled by a few designing people.” And in Max Farrand’s definitive The Records of the Federal Convention of 1987, Roger Sherman said that the people will “never be sufficiently informed.”  Moreover in his classic defense of the Electoral College, historian Martin Diamond saw the institution as a means to protect minority rights, guarding the country against regionalism, sectionalism.

The Electoral College was the product of slavery, racism, and distrust of the people to make their own choices. It is part of a Constitution silent on the right to vote, and to this day there remains no constitutional right for the people to vote for President. The Constitution ignores the popular vote, and delegates to the states the power to select the Presidential electors. It is merely by the grace of state laws that we are permitted to go to the polls to chose the electors who eventually chose the President.

With this election, we will now have experienced five elections where the winner of the popular vote was selected as President but where that winner was not allowed to serve as President. Hope that the Electoral College would protect small states from being ignored or that the Electoral College model would prevent only a few states or regions of the country from determining the presidency have not lived up to the founders’ intent.

As I pointed out in Presidential Swing States: Why Only Ten Matter, the Presidential election process has fallen into a predictable pattern where only a handful of swing voters in a few swing counties in a few swing states ultimately decide the election. It happened again in 2016.  This is hardly democratic, producing a system where the voices of only a few are heard and the majority are ignored or disenfranchised in many states.

The Electoral College is simply outdated, it distorts the views of the majority in the ways the constitutional framers never would have envisioned, and it operates with a view of democracy and of the people that is
inconsistent with contemporary conceptions of what a representative democracy should be–which is that the people have a constitutional right through free elections to let the majority pick their President.

So what is to be done? A 2011 Gallup poll indicated that 62% of the public supports amending the Constitution to allow for direct popular vote of the President. However, amending the Constitution is near impossible, and doing so would not change the outcome of this election in favor of the candidate who was selected by popular vote.

There is another option that can be exercised, and I urge our electors to truly consider it. Come December 19, when the electors of the different states convene across the country, they should simply exercise their legally-viable independent judgment that the constitutional framers envisioned and do what Alexander Hamilton declared is in the best “sense of the people”–and cast their vote for Hillary Clinton for President.

It need not even be all the electors who do that. Simply having some of the electors in the close swing states of Florida, Michigan, New Hampshire, North Carolina, Ohio, and Wisconsin split evenly to reflect the popular votes in those states would be sufficient to ensure the people’s choice is made, that the people’s are heard and valued, to show the people—each one of us—should and do count.

 It would not be unprecedented for electors to cast their votes independently. Over time there have been 157 “faithless electors,” as they are called, members of the Electoral College who did not vote for their party designated candidate who won the state. The most recent was in 2004 when an anonymous elector in Minnesota voted not for John Kerry but John Edwards for President.

The Electoral College may be a broken model-yes, but it’s our existing model-yes again, so why should the electors not do what can and should be done, which is legal and ethical within the framework of the existing model, and vote for the popular candidate?

In voting independently, an elector would be doing exactly what the constitutional framers intended; the electors would be using their positions to vote in line with the sense of the people–in this case, following what the majority voted this past November, which is to make Hillary Clinton the next President of the United States. 

Saturday, November 5, 2016

So How Close is the Presidential Election Now?

So how close is the election right now?  Depending on the polls–along with their inter-
pretation and misinterpretation–one gets varying answers. The simple answer is that there is a lot of misinformation out there, fed in part by cherry picking of data, partisan pushing, or simply a misunderstanding or interpretation of polling and statistics.

On Friday Nate Silver gave Clinton a 66.5% chance to win, down a lot from last week. Until a week ago I had Clinton at about a 75% chance. Before the first presidential debate I had Clinton 50%+ to 55%. I am back to that prediction. Clinton's position in critical swing states appears to be eroding, and data in the Washington Post suggests that too.  However, as of Saturday, November 5, Clinton still has enough of a lead in the critical swing states to put her over 270 electoral votes and win.

But consider two polls.  Earlier this week a Washington Post-ABC Poll had Trump beating Clinton 46-45% among likely voters, with a margin of error of +/- 3%.  Now in a new poll released today Clinton leads 47-43%, with a margin of error of  +/- 3%.  The interpretation of these two polls is that Clinton has recovered from the latest FBI e-mail controversy.  But has she?  Not necessarily.  Consider the margins or error.  A Trump 46-45 lead with a margin of error of 3% could mean the race was Trump ahead 49-42, or Clinton ahead 48-43%, with today Clinton now leading 50-40 or losing 46-44.  Margins of errors are, well, margins of error and not pinpoint statistics.  This means that in the last it is possible there has been no overall shift in the polls and that instead what the Wash Po poll is revealing is nothing more results well within margins of error.  We really do not know if the race has shifted much in the last seven days.  However, given that most other polls have listed Clinton as generally ahead in national polls she may be.

The big issue is how undecided voters will break this weekend. This election reminds me of 1980 when in the last 72-96 hours undecideds broke for Reagan over Carter, preferring change over the status quo because of their disgust with current politics. I see many of the same conditions here now and could see lots of voters either not voting or throwing caution to the wind and breaking for Trump. Often undecideds break for the challenger and against incumbents when they do not like the status quo. This election is really close but I can see possibilities for a Trump or Clinton win, a split between the electoral and popular vote, or even a 269-269 tie that sends the election to Congress to decide.  Do not rule out these possibilities, especially a popular and electoral college split.

 On election night I am looking at North Carolina. If Clinton wins that state it is all over because it will be mathematically hard for Trump to win without NC.

So what happens if the election melts down and the candidates challenge the results?  as I point out in a recent Huffington Post piece, don’t necessarily count on Congress or the Supreme Court to fix this election if it is contested or challenged.  Those institutions too are broken by partisanship.

Finally, for both candidates a major mistake is that neither of them are ending their campaigns with making the case for their election by offering a narrative for governance.  Both are sill running for office by declaring they are not as bad as their opponent.  Neither candidate will have a mandate to govern when they take office.

Thursday, November 3, 2016

Don’t count on Congress to settle a close US presidential election

Today's blog originally appeared in The Hill.

The Constitution ultimately vests in Congress the authority to resolve challenges regarding the counting of electoral votes by the individual states in presidential elections. Yet if the 2016 presidential election melts down or if there are major challenges to the electoral votes in any state, don’t necessarily count on Congress to be able to resolve the problem. The reason is that the law that empowers Congress to resolve electoral vote disputes may be unconstitutional.
Given the recent comments that Donald Trump has made about not necessarily accepting the results of the election, or that a disagreement about the election in some state emerges again as it did in Florida in 2000, it is possible that Congress may be called on to resolve any electoral vote disputes. This would not be the first time Congress had to do that.
Congress did it the first time in 1800 when Thomas Jefferson and Aaron Burr supposedly ran as a president-vice-president ticket, but a flaw in the Constitution led them to receive an equal number of electoral votes, thereby forcing the House of Representatives to select the president and to eventually amend the Constitution.
Then there was the election of 1876 between Samuel Tilden and Rutherford B. Hayes. Tilden received the most popular votes, but the House of Representatives eventually picked Hayes as the president after disputed elections occurred in Florida, South Carolina, and Oregon.
With no other method to turn to, Congress established a partisan Electoral Commission to award an Electoral College majority to Hayes, and agonized over the creation of a procedural framework for resolving disputed elections for a decade — finally passing the Electoral Count Act in 1887.
The Act prescribed a method of appointing state electors, the form in which votes were to be submitted to Congress, and most importantly, a number of restrictive procedures that both Houses of Congress were required to follow in counting the results.
Among these procedures, one provision requires the House and Senate to meet together to resolve disputes, but fails to specify whether this requirement creates a unique and distinct body or if the two bodies are acting separately.
The Electoral Count Act was consigned to the dustbin of history by everyone except the most astute election law scholars until our country again faced a razor-thin presidential contest in 2000. While scrutiny of the Act by the U.S. Supreme Court in Bush v. Gore largely centered on the timing of certification of state election procedures for it to receive safe harbor deference for its election results, the numerous procedural objections raised by members of Congress during the Electoral College count in Congress in January 2001 gave rise to a number of serious constitutional questions that have somehow evaded lawyers over the past fifteen years.
Among these issues are whether the actual rules that dictate how the votes will be counted by the House and Senate together are themselves constitutional. It may well be that these rules violate other constitutional provisions that make the House of Representatives and Senate the ultimate judge of their own internal procedural rules.
It is possible that the Electoral Count Act of 1887 violates this constitutional provision by forcing the two bodies to act as one and give up their own power to control these rules. 
And even if not unconstitutional, deep partisan disputes and jealousy between the House and Senate could lead to a stalemate during the counting of the votes. Assume for the sake of argument that the Republicans keep the House and the Democrats take the Senate — objections raised by Republican Members of the House might be perfunctorily overruled by Democratic President of the Senate (Vice President) Joe Biden, leading to the Republican House asserting that Vice President Biden’s power to rule on their objections is unconstitutional.
At that point, in a political era of intense partisanship, a mess greater than that experienced in 2000 would be faced by our federal courts. If the Electoral Count Act were constitutionally challenged it could potentially leave Congress without a viable means of resolving a heavily partisan and disputed controversy.
This would send resolution of the 2016 race into uncharted political and constitutional waters that could well take months if not longer to address, much like it did in 1876. 
In an era of division and discord, we can all agree that the rules of the game for presidential elections must be fair, agreed to by all, and most importantly, constitutional.
Quick action should be taken to ensure that our history of disputed results, hanging chads, and uncertain procedures does not continue to linger over this country in future presidential elections.
Schultz and Land are the authors of a recent journal article on this topic entitled “On the Unenforceability of the Electoral Count Act” published in the Rutgers Journal of Law & Public Policy. Schultz is a Professor of Political Science at Hamline University and Land is Deputy Legislative Counsel of the Nevada Legislature.

Saturday, October 29, 2016

The Clinton E-Mails: The Political versus the Legal Issues: Why she is not a crook

FBI Director Comey’s letter to Congress regarding Hillary Clinton’s emails is a political but not a
legal big deal.  While its political impact is already being seen and its final impact is potentially significant, legally what Comey said and what is likely to come of it is no big deal.  This of course raises the question, why did he do it and what impact will it have?

First why did Comey do it?  Some see a sinister political motive here.  Claims that the Bill Clinton’s  visit with the attorney general on the tarmac lead to a deal to squash prosecution.  This is the conspiracy thesis.  Comey’s letter to Congress is political payback, with him recognizing that he does not keep his job if Clinton is president.  Maybe.  But a more probable theory is that Comey did it to protect the FBI budget.  Congressional Republicans were angry with the decision not to charge Clinton and they were making noise about budgetary retaliation.   This letter might be no more than  organizational politics, and less personal animus or sabotage directed at Clinton.     Now consider the legal issues here. First note that the FBI did not say it was reactivating the criminal investigation against Clinton.  It discovered new emails on a computer owned by Clinton’s top aide in connection with a criminal investigation into her estranged husband’s sexting.  There is no indication as of now there are any classified e-mails here.  Legally nothing has changed here.

But more importantly, even if the FBI finds classified e-mails, it still does not change the legal game.  There are several possible laws that Clinton could have potentially broke, of which only  one is a criminal law.  The main criminal law--Section 1924 of Title 18 of the U.S. Crimes and Criminal Procedure Code–is the most relevant.    Here is what that law says.

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

The critical part of this law is the emphasis on the words “knowingly” and “intent.”  Why is this important?  Criminal law requires the proving of two elements to establish guilt: actus reus and mens rea.  Actus Reus refers to the showing that one factually did a specific thing–such as physically take something–whereas mens rea requires proof of some level of intent.  With the exception of a very few regulatory crimes, there are no strict liability criminal laws in the US.  One has to show some level or type of intentionality to establish guilt, and this proof has to be beyond a reasonable doubt, with the presumption being innocent until proven guilty.

The reason why this is important is that Director Comey had already concluded that in FBI’s  questioning of Clinton she did not intend to deceive.  Moreover, there is no evidence that there was intentionality or knowingly on the part of Clinton that would establish that she violated 18 USC § 1924.  The same would be true of any other alleged criminal violations such as those for perjury and false swearing.   For example, 18 U.S. Code § 793--Gathering, transmitting or losing defense information–states it is “illegal for any person with “the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States.”  This law requires a very specific intent–to bring about harm to the US.  Clinton may be a lot of things but under no circumstances can one argue she is a traitor or wishes to intentionally bring hard to the United States.

The broader point here is that first there is no indication that Comey’s evaluation of new emails is reopening the Clinton criminal investigation.  Second, among the several laws she possibly could have violated, only a few are criminal.  Third, there is no indication that any new emails would likely change anything in terms of establishing the mens rea necessary to establish criminal liability.  In short, the legal situation of Clinton has not changed at all since Friday.

But turning to politics, coming 11 days before the presidential election this story impacted the Clinton campaign in several ways.  While Clinton had appeared to be opening up a near insurmountable lead in national aggregate and swing state polls, and the likes of the NY Times and FiveThirtyEight had just about declared the race over, there were signs even before Friday that she was beginning to slip in the polls.  Some sites claimed she had already lost eight points in the last week, but there are many reasons to discount this big erosion given polling margins of errors and the inclusion of  outlier polls.  Clinton had a lead that was built less out of how good she had been campaigning but more out of how bad Trump had been since the first debate.    Clinton was falling again into over-confidence, and failing to realize the volatility of her support given her still high negatives.

The Comey letter freezes her momentum.  It takes away her narrative and the focus on Trump’s sexual behavior and puts spotlight again on her character.  Clinton is now again in a defensive mode, one that may be difficult to reverse and the Clinton camp knows that; that is why they are so angry.

Potentially this story does not matter.  Lots of people have early voted.  But the early voters are those who made up their mind to vote and for whom.  The battle all along has been to move swing voters and mobilize the base.   Trump’s road to victory is heavy mobilization of his base, dispirit Clinton’s, and discourage swing or marginal voters from showing up for the former Secretary of State.  The new email story re-energizes the Trump base and it may discourage the marginal Clinton supporters and swings from voting.  The election will be won or lost by the remaining 5% or so of the voters who are deciding if and how they will vote.  Early voting may not be great enough to offset how this final 5% decides.

Thursday, October 20, 2016

Trump is right: The election is rigged — but in his favor

Today’s blog originally appeared in the Hill.

October 19, 2016, 10:48 am
Trump is right: The election is rigged — but in his favor
By David A. Schultz, contributor

Donald Trump is right that the election is rigged, but he’s right for all the wrong reasons. It’s rigged by race, class, and gender in ways that favor individuals such as Trump.

Doug Chapin and Lawrence R. Jacobs recently argued correctly in a Contributors piece in The Hill that election administration is fair and for the most part its administrators are competent and impartial. The days are gone when Lyndon Johnson won his 1948 Texas state election by having the dead vote for him in alphabetical order. This is not where elections are rigged now.
If elections can be rigged, either party can do it. The secretary of state (or commonwealth) is the chief election officer in each state and they would have the ability to manipulate the election system to the benefit of their favored candidate.

Of the 50 states, 28 are Republican. Among the 11 swing states that are Colorado, Florida, Iowa, Ohio, Nevada, New Hampshire, New Mexico, North Carolina,  Pennsylvania, Virginia, and Wisconsin, only three, Pennsylvania, Virginia, and Wisconsin, are controlled by Democrats.

Republicans control nearly two-thirds of the secretaries of state in the critical swing states and presumably would not have an incentive to rig the election in favor of Clinton.

Look at who votes, runs for office, and give political contributions. All skew toward older affluent white males — a profile not much different from Trump. The major interest groups and political action committees active in campaigns tend to be composed of these types of people, supporting interests more favorable to them than the poor or people of color.

Back in the 1960s political scientist E.E. Schattschneider described a bias in the American political process that favors a democracy for only a subset of the entire population, that observation remains largely if not more firmly true today.

People of color are less likely to register or actually vote than Caucasians. Historically, lynchings and racially discriminatory laws such as poll taxes, literacy tests, grandfather laws prevented African-Americans from voting.

The 1965 Voting Rights Act banned these practices and increased voter turnout among all people of color, but the Supreme Court in 2013 gutted the VRA in Holder v. Shelby County, embolden almost immediately  a new round of laws to suppress voting that may impact the 2016 elections.

A new disenfranchisement is afoot. False claims of voter fraud have led to numerous laws impacting the voting rights of the poor, students, and people of color. Many of these are groups whom if they vote it will not be for Trump. Cutting back on early voting or closing or moving voting locations produces longer lines to  vote.

Seldom are these polls closed in neighborhoods with poor people or people of color. There are stories of purged voter lists, complex rules to register, or in the case of voter id laws, costs associated with securing the documents required to obtain  the ids necessary to vote. They are the new poll tax.

According to the Sentencing Project, more than six million individuals cannot vote because of felon disenfranchisement laws. Some of these bans are for life. These laws disproportionately impact racial minorities with one in thirteen African-American adults unable to vote due to these laws. In Florida and Virginia, two critical presidential swing states, more than 20% of African-American adults cannot vote because of these laws.

Only a very small percent of the population expends money for political purposes. The Sunlight Foundation documents that the richest 0.01 percent of the population accounted for 42% of all the 2012 political contributions. The 2010 Supreme Court Citizens United  decision has pumped more corporate money into elections.

The cost of running for office all but excludes the poor and middle class as candidates, and because women are still confront glass ceilings in business, many face additional difficulties compared to men like Trump in locating  donors and money to run for office. None of this includes the sexist double standards women face as candidates, or the reality that there is still a percentage of the population which will not vote for any female candidate.

In many states the poor cannot take time off from work to attend a caucus or vote in a primary or general election because it means forgoing a pay check. Restrictive ballot access laws make it difficult for third party or independent candidates to run for office.

The Commission on Presidential Debates has adopted restrictive laws regarding who can participate  such that no third party candidate will probably ever again be invited unless he or she is as rich as Ross Perot was in 1992 when he was able to buy his way in as a serious contender.

What little money is left in the nearly bankrupt and broken presidential public financing system goes to a third party too late to help it in the present election. But for the rest of the congressional and most state and local races, there is no public financing, creating a wealth primary that excludes all but a few from even running for office.

It is easy from the position of being white, male, and affluent to say that the American election system is fair and legitimate. The reality is that for millions it is not. It is a system that is actually rigged in favor of individuals such as Donald Trump who has benefitted from a political and economic system that more likely favors people like him.

Tuesday, October 18, 2016

Elvis Sightings, Space Alien Abductions, and Election Rigging

I have spent way too much time in my career writing about voter fraud, or rather its absence.  Let me offer a few thoughts here about voter fraud and vote rigging.   Here are links to a two of my articles, one in a Harvard publication, the other in Mitchell Hamline Law Review.  I have read just about every credible (and non-credible) study there is on voter fraud and they largely disprove the theory of widespread in-person voter fraud.   Here are a few paragraphs from what I have written.

What evidence does exist documenting voter fraud?  Nationally, the three most persistent claims of voter fraud come from the Wall Street Journal’s John Fund, a report from the Senate Republican Policy Committee in Congress, and the Carter-Baker Report. None of these studies have documented provable and significant voter fraud.  The Carter-Baker report asserts that: “[W]hile election fraud is difficult to measure, it occurs.” Proof of this assertion is citation to 180 Department of Justice investigations resulting in convictions of 52 individuals from October 2002 until the release of the report in 2005. Yet while the Carter-Baker Commission called for photo IDs, it also noted that: “[T]here is no evidence of extensive fraud in U.S. elections” As with other studies, absentee voting is singled out as the place where fraud is most likely to occur.

As the Brennan Center stated in its analysis and response to the Carter-Baker call for a voter photo ID: “None of the Report’s cited examples of fraud stand up under closer scrutiny.”  Even if all of the documented accounts of fraud were true, the Brennan Center points out that in the state of Washington, for example, six cases of double voting and 19 instances of individuals voting in the name of the dead yielded 25 fraudulent votes out of 2,812,675 cast—a 0.0009 percent rate of fraud. Also, assume the 52 convictions by the Department of Justice are accurate instances of fraud.  This means that 52 out of 196,139,871 ballots cast in federal elections, or 0.00003 percent of the votes, were fraudulent. The chance of being struck by lightning is 0.0003 percent.
Similarly, Minnesota is devoid of significant in-person voter fraud.  The state has witnessed two close elections and recounts in 2008 with the senate contest between Al Franken and Norm Coleman and then in 2010 with Mark Dayton and Tom Emmer.  In both cases the recounts failed to show any real in-person voter fraud or impersonation at the polls.  Even in its oral arguments before the Minnesota Supreme Court in Coleman v Franken, Coleman’s attorney Joseph Friedberg, when asked by a Justice whether widespread voter fraud existed, conceded that it had not.

The Minnesota Majority has alleged many instances of voter fraud over the years.  Mike Freeman, Hennepin County Attorney, has investigated many of them in his jurisdiction.  He found none involving in-person voter fraud.  Yes, 40 ineligible felons voted, but voter ID would not prevent that because drivers’ licenses do not indicate criminal records.  In 2008 seven voter-impersonation charges were investigated by Minnesota county attorneys; there were no convictions.

The Costs of Voter ID
What are the costs associated with adopting the amendment?  Minnesota will spend millions of dollars issuing identifications for those who currently lack them.  The Secretary of State has estimated that 215,000 Minnesota adults lack a state-issued ID. Minnesota and local governments will spend millions of dollars to implement the new ID requirements. Additionally, individuals will bear costs to secure these IDs.  In Weinschenk v. State19 the Missouri Supreme Court noted that approximately 3 percent to 4 percent of the state population lacked an appropriate identification to vote under its voter ID law.  It found that for many the costs of getting the ID were significant, even if the state issued it for free.  Many individuals lacked state birth certificates, or were born out of state, or naturalized, and they lacked the required documents to secure the state ID.  Many of these documents cost money, in addition to the time and ability to navigate the bureaucracy to obtain them.  For these reasons, the Missouri Supreme Court invalidated its voter ID law under its state equal protection and right to vote clauses.
Many of the individuals who lack valid IDs are the elderly in nursing homes, recent immigrants to the state, students away at school, and those who have recently moved into a new home or apartment.  Imagine trying to get your elderly mom or grandmother out of a nursing home and into a state driver’s license office to get new photo identification.  The costs to these individuals may be enough to disenfranchise or discourage them from voting.

Election Official Manipulation

If elections can be rigged, either party can do it.  The secretary of state (or commonwealth) is the chief election officer in each state and they would have the ability to manipulate the election system to the benefit of their favored candidate.  Of the 50 states, 27 are Republican.  Among the 11 swing states that are Colorado, Florida, Iowa, Ohio, Nevada, New Hampshire, New Mexico, North Carolina,  Pennsylvania, Virginia, and Wisconsin, only four, North Carolina, Pennsylvania, Virginia, and Wisconsin, are controlled by Democrats.  Republicans control nearly two-thirds of the secretaries of state in the critical swing states and presumably would not have an incentive to rig the election in favor of Clinton.